Phillips v. Erie County Electric Co. , 249 Pa. 445 ( 1915 )

Per Curiam,

• The amendment to the statement did not substitute a new party or change the cause of action, and was properly allowed: Trego v. Lewis, 58 Pa. 463; Rick v. N. Y., Chicago & St. L. R. R. Co., 232 Pa. 553; Levin v. Clad & Sons, 244 Pa. 194. The action was brought to recover' damages for the death of plaintiff’s husband caused by the negligence of the defendant in the construction and maintenance of a system of electric wires in Sassafras street between 21st and 23d streets in the City of Erie. The statement laid the place of the accident at 21st and Sassafras street which, by the amendment, was changed to 22d and Sassafras street where the accident occurred.

It will be observed that the negligent act, the cause of action, was committed during the construction and maintenance of the system of wires on Sassafras street between 21st and 23d street which included the point where the accident occurred, whether at 21st or 22d street. The accident resulted in death for which damages are claimed. As pertinently suggested by counsel, the victim of the defendant’s tort could die but once, at one time and at but one place, and necessarily there could be but one action by the widow for his death regardless of the point or place between 21st and 23d streets where the tort, laid in the statement, was committed. It is equally true that the amendment did not change the measure of damages nor the evidence required to prove the cause of action set forth in the statement.

. The recent case of Hippie v. Edison Elec. 111. Co. of Pottsville, 240 Pa. 91, is controlling as to the merits of the case. The question of contributory negligence was not for the court but for the jury and was properly submitted in a charge to which no error is assigned.

Judgment affirmed.